Staddle of the Republic
February 15, 2016 6 Comments
In Georgian (or thereabouts) England they used to build barns on top of mushroom-shaped stones, called staddles. Two of the major reasons they did this was that it is nearly impossible for vermin to climb them, and they allow air to circulate below the floor, keeping the grain from spoiling. Justice Antonin Scalia was rather like that, keeping the vermin who would spoil the Constitution out (as much as possible) and keeping it fresh with his wit.
When his death was announced Saturday morning, my first thought (after prayers for his family) was a sense of discomfort that the Republic had lost a great champion of freedom. I still feel that way. We have unexpectedly lost one of the greats of the Supreme Court, and America.
Ilya Somin posted a sensitive professional remembrance of him here:
Scalia’s most significant legacy is his insightful defense of originalism in constitutional theory and textualism in statutory interpretation. Both textualism and originalism have far more support today than they did back when he was first appointed to the Court, thirty years ago. Significantly, some of that support crosses ideological lines, […]. While the rise of originalism and textualism has many causes, some of that progress is undoubtedly due to Scalia’s forceful and effective advocacy.
Scalia’s views on textualism are well-summarized in his book A Matter of Interpretation. His famous article “Originalism: The Lesser Evil” is probably his best-known defense of originalism (see also this critique by Randy Barnett).
While Scalia’s views on judicial methodology have had widespread influence, many of his opinions on specific legal issues remain highly polarizing, often admired by conservatives but hated by many liberals. Critics argued that his reasoning was flawed in various ways, and that he did not always follow his own methodological commitments when it was inconvenient to do so. In some areas, such as his opinions in affirmative action cases, he did not even try to make originalist arguments for his positions, even though there is a serious originalist case for striking down seemingly “benign” racial preferences. I myself differed with Scalia on a number of important issues, such as the constitutionality of laws banning same-sex marriage, and whether Congress has the power to ban the possession of medical marijuana that had never crossed state lines or been sold in any market.
But whether you agree with his views or not, it is hard to think of any other recent Supreme Court justice who has made a comparably great contribution to debates over both statutory interpretation and constitutional theory. It may be a long time, if ever, before we reach any consensus about Scalia’s legacy. But its importance cannot be denied.
If you are not familiar with his views, and scholarship, and yes, his wit, here he is addressing the Cambridge Union on 3 September 2012. It’s a fascinating speech.
Governor Abbott of Texas’ statement said it well:
“Justice Antonin Scalia was a man of God, a patriot, and an unwavering defender of the written Constitution and the Rule of Law. He was the solid rock who turned away so many attempts to depart from and distort the Constitution. His fierce loyalty to the Constitution set an unmatched example, not just for judges and lawyers, but for all Americans. We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the Rule of Law. Cecilia and I extend our deepest condolences to his family, and we will keep them in our thoughts and prayers.”
From my neighborhood:
Nebraska Senator Ben Sasse:
“A tireless defender of the rule of law, Justice Scalia’s precise thinking, sharp wit, and unwavering commitment to American constitutionalism will be remembered for generations. We are grateful for his service and heartbroken at this sudden loss. Melissa and I uphold the Scalia family in our thoughts and prayers.”
Nebraska Senator Deb Fischer:
“Our nation mourns the loss of a brilliant legal mind and selfless servant of the law. Justice Scalia lived a life dedicated to preserving and upholding the rights granted by our Constitution. Bruce and I join all Nebraskans in offering our condolences and prayers for the Scalia family.”
Iowa Senator, and Senate Judiciary Chairman, Chuck Grassley:
“He was a person who interpreted the Constitution to its original intent, and that he’ll be badly missed for that reason, and he leaves quite a legacy of scholarship.”
My condolences to the family, and may you rest in peace, sir. You will be both mourned and remembered as a hero of America.